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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. Barnes [2005] IEHC 245 (18 July 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H245.html Cite as: [2005] IEHC 245, [2005] 4 IR 176

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2005 IEHC 245

THE HIGH COURT

[2005 No. 267 SS]

IN THE MATTER OF SECTION 2 SUMMARY JURISDICTION ACT 1857 AS EXTENDED BY SECTION 51 COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA CATHAL A. O'REILLY)

PROSECUTOR

AND ANDREW BARNES

ACCUSED

JUDGMENT of O'Neill J. delivered the 18^th day of July, 2005.

This is a case stated by Murrough Connellan a Judge of the District Court in which he poses two questions for the opinion of this court as follows:

(a) Whether the typographical error in the s. 17 certificate is fatal to the successful prosecution of the accused.

(b) Whether the s. 17 certificate can ever be amended by the court for obliteration or mistake.

The facts giving rise to this case stated are set out in the case stated and may be summarised as follows.

The accused appeared at the District Court in Bray on 8^th December, 2003, to answer a charge set out in Shankill Charge Sheet No. 188997 where it was alleged that on 29^th June, 2003, at Holly Park Shankill Co. Dublin he was in charge of a mechanically propelled vehicle registration numbers and letters 92 WW 1840 in a public place with intent to drive the said vehicle (but not driving or attempting to drive it) when in his body there was present a quantity of alcohol such that within three hours of having been so in charge of the vehicle the concentration of alcohol in his breath exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath, contrary to s. 50 (4) (6) (a) of the Road Traffic Act 1961 as inserted by s. 11 of the Road Traffic Act 1994 as amended by the Road Traffic Act 1995 as amended by s. 23 of the Road Traffic Act 2002.

On the 29^th June, 2003, at approximately 1.00 am the prosecutor noticed the accused sitting in his car, in the driver's seat with the engine running and the front headlights switched on. He observed the accused's eyes to be bloodshot and that there was a strong smell of alcohol from him and his speech was slurred. The prosecutor formed the opinion that the accused had consumed intoxicating liquor to such an extent as to render the accused incapable of having proper control of a mechanically propelled vehicle in a public place and he had informed the accused that he was of the opinion that the accused had committed an offence under s. 50 (1) (2) (3) or (4) of the Road Traffic Act 1961 as amended. He informed the accused that he was arresting him for being drunk in charge of a vehicle with intent to drive and this happened at 2.00 am. He arrested the accused and brought him to Bray Garda Station where he introduced him to the member in charge Sergeant John O'Driscoll. The accused was observed for 20 minutes prior to having the intoximeter test done. At 2.40 am the accused was taken to the intoximeter room for the purposes of an evidential breath test. Garda Joseph Keenan performed this procedure and was observed by the prosecutor. Garda Keenan proceeded to enter the accused's details into the machine, a Lion Intoxilyzer, and it is common case that in error he typed into the apparatus that the specimen was being taken into account for the purposes of s. 49 (4) for the Road Traffic Act 1961 whereas he should have typed in, that the specimen was being taken into account for the purposes of s. 50 (4) of the Road Traffic Act 1961. Garda Keenan then proceeded to carry out the test. That involved the accused providing two samples of his breath pursuant to s. 13 (1) (a) of the Road Traffic Act 1994. The accused cooperated with the test and provided these two samples by exhaling twice into the machine. The intoxilyzer then printed off two identical copies of a statement. The intoxilyzer reading showed a concentration of 66 micrograms of alcohol per 100 millilitres of breath. Garda Keenan then provided the accused with both copies of the statement and requested him to acknowledge receipt by signing both copies. The accused complied with this request.

At the commencement of his evidence Garda Keenan drew the courts attention to the fact that he had in error typed into the intoxilyzer machine the wrong offence.

At the conclusion of the evidence Mr. McLoughlin, solicitor for the accused applied for a direction that the accused be acquitted on the grounds that the specimen of breath to be taken into account was for the purposes of s. 49 (4) of the Road Traffic Act 1961 when in fact the accused had been charged with an offence contrary to s. 50 (4) of the same Act. Mr. McLoughlin further submitted that the court had no power to amend the certificate which on its face was incorrect.

The learned District Judge declined to grant the application for a direction but agreed to state a case for the opinion of this court and posed the aforementioned two questions.

The following statutory provisions are relevant to this case.

Section 17 (2):

"(2) Where the apparatus referred to in section 13 (1) determines that in respect of the specimen of breath to be taken into account as aforesaid the person may have contravened section 49 (4) or 50 (4) of the Principal Act, he shall be supplied forthwith by a member of the Garda Síochána with 2 identical statements, automatically produced by the said apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the said apparatus…

21.(1) A duly completed statement purporting to have been supplied under section 17 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961 to 1994, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the member of the Garda Síochána concerned with the requirements imposed on him by or under this Part prior to and in connection with the supply by him pursuant to section 17 (2) of such statement."

Article 5 of the Road Traffic Act 1994 (s. 17) Regulations 1999 S.I. No. 326 of 1999 reads as follows:

"For the purpose of completing the statements referred to in article 4, the member of the Garda Síochána who required the arrested person to provide two specimens of breath shall:-

(a) prior to the provision of the specimens, input the following information into the apparatus referred to in section 13(1) of the Act of 1994-

(i) the name and address of the person providing the specimens,

(ii) the section of the Road Traffic Act, 1961 (No. 24 of 1961) which it is alleged that the person contravened,

(iii) his or her name and number, and

(c) following the automatic production of the statements by the apparatus, sign the said statements."

As is apparent from the foregoing statutory, provision, for a statement emanating from the apparatus in question to be admitted into evidence and to have evidential status pursuant to s. 21 (1) of the Road Traffic Act 1994, the Statement must be "duly completed". There is no doubt that the statement in question was in the prescribed form but the first issue which arises in this case stated is whether or not having regard as to the error as to the offence mentioned in the statement, it can be considered to be duly completed.

This case is the latest in a long line of similar type cases which have come to this court generally as cases stated from the District Court, where there have been challenges to the admissibility of evidence of this kind in drink driving type cases. It is clear from the long line of authorities that has evolved that there are two guiding principles which must inform decisions as to the admissibility into evidence of certificates or statements which are admitted into evidence by virtue of statutory provision and in the absence of contradictory evidence prove their content. The following passage from the dissenting judgment of O'Higgins C.J. in the case of Director of Public Prosecutions v. Kemmy [1980] I.R. 160 at p. 164 illustrates the first of these principles where he says:

"Where a statute provides for a particular form of proof or evidence in compliance with certain provisions, in my view it is essential that the precise statutory provisions be complied with. The Courts cannot accept something other than that which is laid down by the statute, or overlook the absence of what the statute requires. To do so would be to trespass into the legislative field. This applies to all statutory requirements; but it applies with greater general understanding to penal statutes which create particular offences and then provide a particular method for their proof…".

The following passage from the judgment of O'Flaherty J. in the Director of Public Prosecutions v. Somers [1999] 1 I.R. 115 at p. 119, illustrates the other operative principle where he says as follows:

"I believe this case is all but ruled by the previous decisions of this Court in Director of Public Prosecutions v. Kemmy [1980] I.R. 160 and Director of Public Prosecutions v. Collins [1981] I.L.R.M. 447. It seems to me that at most what happened here was that the doctor made a technical slip by not filling out the second paragraph of the prescribed form. There could be no confusion in anyone's mind, on reading the document as completed, but that it was a blood sample that was to be forwarded to the Medical Bureau of Road Safety.

The certificate issued by the Bureau specified that there had been a concentration of 270 milligrams of alcohol per 100 millilitres of blood found in the specimen. That is over three times the permitted limit.

If courts were to allow such flimsy points as this to govern cases, the administration of justice would most likely be brought into disrepute.

It is true that in general the law expects strict compliance with the wording of statutes, especially in a penal context. But this is so that the purposes and objects of the legislation are observed. It is impossible to seek perfection at all stages of life and when there is a tiny flaw in the filling out of a document such as this, which flaw is of no significance and cannot possibly work any injustice to an accused and is not in discord with the purposes and objects of the legislation, then the courts are required to say that such a slip, as we have here, cannot be allowed bring about what would be a manifest injustice as far as the prosecution of this offence is concerned."

With this judgment the others members of the court Lynch J. and Barron J. agreed. Barron J. in his judgment added the following:

"The essence of the criminal law is certainty as to that law. So everyone must know with certainty what conduct will amount to a criminal offence. If the accused is convicted, he must know with certainty of what he has been convicted and the exact nature of his punishment.

It follows that statutes within the criminal law field must be construed strictly to ensure that these aims are achieved. What has to be construed here are provisions to ensure that there will be certainty as to what has been done leading to a prosecution. The accused person is entitled to know at his trial that everything that should have been done had been done. There must be no room for doubt."

A court therefore confronted with an application such as was made by Mr. McLoughlin the solicitor for the accused in the District Court must approach the matter on the basis of being satisfied that there has been a strict compliance with the relevant statutory provision before admitting the statement into evidence against an accused.

On the other hand where objection has been taken to the statement on the basis of an error in it, if the error is of such an obvious or trivial or inconsequential nature so that it could not be said that it gave rise to any confusion or misleading of the accused or imposed any prejudice on him or in any way exposed him to any injustice then the court should conclude that the error in question did not detract from the due completion of the statement in question and it should be admitted and permitted the force and effect provided for by, as in this case s. 21 (1).

In essence therefore what has to be decided in this case is whether the error that was made is one which was plain or palpable or clear and which did not mislead or confuse or cause prejudice or injustice to the accused bearing in mind that, as was said by Barron J. the accused is entitled to certainty as to the nature of the offence and the nature of the evidence with which he is confronted.

I have come to the conclusion that the error which was made in this case does not detract from the due completion of the statement in question. I have come to the conclusion that having regard to all of the surrounding circumstances, namely the setting out of the charge in the charge sheet, the clear identification of the offence involved and the evidence that was given against the accused as recited in the case stated the strict compliance by the prosecutor and Garda Keenan with the statutory procedure set out in ss. 13 and 17 of the Road Traffic Act 1994, it does not seem to me to have been possible that the accused was confused let alone misled as to the particular offence for which the specimen was taken. It would appear to me that a suggestion that there was any lack of certainty in the circumstances of this case as to the particular offence in respect of which the two specimens of breath were taken is simply unreal and not credible. I am quite satisfied that the error in question did not and indeed could not have imposed any prejudice on the accused or exposed him to any risk of injustice.

In the light of the foregoing conclusion I would answer the first question in the case stated by saying that the typographical error in the s. 17 certificate is not fatal to the successful prosecution of the accused.

In the light of my foregoing conclusion it would seem to me to be unnecessary to answer the second question however I feel it appropriate to observe that I cannot conceive of any circumstances in which it would be permissible for any court to alter evidence and in particular evidence such as a statement of the kind in issue in this case produced in purported compliance with the particular statutory provision. Equally clear is that Order 12 Rule 2 of the District Court does not provide any basis for considering amending documentary evidence.

Thus if it were necessary for me to have decided it I would answer the second question also in the negative.

In conclusion therefore my answer to the two questions posed is

(a) No.

(b) No.

Approved: O'Neill J.